Introduction by Maarten van Traa - Hoofdinhoud

Contentssopgave van deze pagina:

1.

Introducing Richard J. Goldstone

I have a great admiration for Mr Richard J. Goldstone, the tonight’s keynote speaker. Richard Goldstone – I do not know him personally, interviews with him do not convey a lot of human interest, rightly so, I think – must have been a successful law student. Already a full-fledged lawyer at 25, joining at that age the Johannesburg Bar in 1963, he was appointed as a Judge of the Transvaal Supreme Court in 1980. He pursued the career of the white elite of his country. So far, many of his colleagues must have followed the same path. But he also made a difference. As a Judge, he used the rare occasion, not only to interpret the law of the land but also to be instrumental in changing it by getting closer to the truth about police involvement in the violation of human rights.

The interesting part of his life, for us, is of course the role he played in the transition of South Africa from the country of Apartheid to the country of Nelson Mandela and equal rights. For us politicians, interested at the time in South Africa, Goldstone became a household world. A household world, because here was a man who represented both political decency and non-political juridical values, willing to defend those values against the mainstream in political thinking of the elite at the time.

Beginning in 1989, Goldstone acted to facilitate the revolutionary but relatively orderly transition to a new regime in his country: by seeking the truth and revealing the fact that a third police force was actively engaged in frustrating the possibility of peaceful change towards a democratic South Africa. ‘I think I was engaged in a semi-juridical exercise. We have helped to manage peaceful change because we could react shiftly to slaughter and other violations of human rights.’

That is the interesting field between law and politics.

Goldstone became a prominent member of the old elite, convinced that the law of the land had to change to bring justice. Without people like Goldstone the necessary change in a country like South Africa would have been much more violent. So, in that sense he has gained already the access to the history books of his own country.

2.

The power of the executive

Politicians and lawyers, judges, jurists have a very different relationship with the law. They do not see their respective role in a democratic society. Politicians like the leader of the liberal group in the Dutch parliament thought it nearly unthinkable that a judge in Zwolle comes to the conclusion that asylum seekers cannot be sent back to Somalia. Where is the power of the executive? Lawyers have a tendency to consider themselves as operating in a totally different world from politics. The category politics is reserved to describe the unrespectful games of power, while the law is some high moral category which is completely exempt from power considerations. They tend to forget that lawmakers are, in the last resort, politicians. Goldstone would not make that mistake, I gather.

It should not be otherwise in a democratic society. Judges should interprete the law; they should not make it.

That is still, to my mind, the sound idea of power separation, especially where a judge is accountable to no one.

The real world, especially in international law, is of course completely different. Law and power politics do not have the same weight in the international arena.

The decision to create an International Criminal Tribunal for the former Yugoslavia by the Security Council of the UN in 1993 was a highly political decision. But it still creates a new possibility to implement principles of international law, since the relative failure of the follow-up of the London decisions of August 1992 on Yugoslavia and the outcry over the clear violations of international law.

The UN decided to go ahead with the Tribunal in 1993. A matter of bad conscience, mauvaise conscience. A not really powerful alternative to the lack of convincing methods to stop the bloodletting and the strife; at the time then a very clear concept of what the Tribunal should accomplish in real terms.

I saw it first as an expression of the lack of commitment of the international community in the field to end the grave violations of human rights, killings and murders in both Yugoslavia and Rwanda.

But one has to conclude: The shaky political basis of the Tribunal does not make the experience of the International Tribunals both on Yugoslavia and Rwanda less worthwile. On the contrary, each further step, how incomplete it might be, on the road of the implementation of international law, of the accountability of war criminals, of the objective gathering of relevant facts should be welcomed. As Goldstone says: ‘Truth is part of justice’, (e.g. Vrij Nederland of September 14, 1996).

It should be welcomed that the Dayton agreements on Yugoslavia did not mean the end of the International Tribunal. That was altogether a possibility. There, against many expectations, the US did not choose to agree to a general amnesty which would have meant the end of the Tribunal if the Security Council had agreed later. As a footnote: the basis for both Dayton and the Tribunal is a weak one. None for Dayton and Chapter VII of the UN Charter for the Tribunal. But it is the only realistic basis in this time. No more (and no less) than a resolution of the Security Council which could be changed at any given time.

Politics deals with, is the art of, the division and devel­opment of real power relations in the world. Any diplomat, lawyer or judge should be aware of that.

3.

Interaction between politics and law

Successful politics breeds the law that will make people less dependent on the exercise of crude power. That is the essence of interaction between politics and the law.

Another footnote: If the director of the office of human rights and democratic institutions of the OSCE, the ODHIR, a British diplomat, tells us she has not to do anything with politics as if it were a contaminous disease: to my mind, she does not know what she is talking about.

Goldstone would never make such a statement, I pre­sume, I hope. He has shown all along in his role as Prosecutor how aware he is of his own fragile role to create more power for the application of international law. Reminding us constantly about the setting of our own standards, he has helped considerably to expand the fragile existence of the International Tribunal, pushing also cogently for an Interna­tional Permanent Tribunal on War Crimes.

And humanly, and truly exploding when he is going back to South Africa: about the scandal that Karadzic and Mladic are not being arrested and transferred to The Hague, the day before yesterday (September 16, 1996) in the British paper The Independent. Why? Goldstone says: ‘It has been an insensitive game with the feelings of the victims. Politicians prefer a big catastrophy out of inactivity than a small calamity out of direct action.’ In this sense Karadzic and Mladic stand for all the other indicted persons who have not been apprehended.

Especially in the Netherlands we should be much more concerned than we are. After all Mladic and Karadzic have been indicted for their part in the genocide at Srebrenica, mind you.

It has to do with our own responsibility as Dutch, also with Srebrenica.

How come nobody wants to address that link. Will we certify the elections without a plan to bring those two to The Hague? It is in a sense unacceptable that we have fallen silent on Srebrenica and the role of Mladic and Karadzic. They should be brought to justice. The Rijksinstituut voor Oorlogsdocumentatie will not do so. The IFOR II mandate should explicitely provide for the arrest of indicted war criminals.

If we cannot take that risk, the future of the whole Tribunal is at stake. We should take that risk.

Richard Goldstone goes back to South Africa to write a new Constitution and to take up his role as a member of the Constitutional Court.

Of course, he is extremely qualified. We wish him well. But would he have done the same thing if he was now able to actively prosecute Mladic and Karadzic as well? If things were going differently at the Ruanda Tribunal in Arusha, Tanzania where he is also the Prosecutor?

How frustrated you might be, how much you like to go back to your country: it is a lack of authority for the Tribunal all the same.

Because it will be very difficult to find a Goldstone II.

Maybe you could reveal here what would make you stay or what should change first and foremost in the Tribunal.

Many people in the audience would like to know the answer.

Because it could very well be another Prosecutor with the same grasp of both politics and international law is hard to find. So tell us what would make you stay or at least, tell us, Sir, what your successors should get that you never got.